The mayor and police commissioner are deferring to the U.S. Attorney as they withhold videos showing a Buffalo cellblock attendant attacking a handcuffed prisoner.

U.S. Attorney William J. Hochul Jr. says he asked the city not to release the videos for now because he has an obligation to follow federal evidence laws and ensure the attendant receives a fair trial.

But in one other case where the public has seen before trial video of a law enforcement officer using excessive force, Hochul has won convictions.

And he also is prosecuting a second case where a video has been made public.

In the first instance, a bystander’s cellphone video of Buffalo Police Officer John A. Cirulli striking a handcuffed man lying facedown on a Riverside sidewalk in April 2014 was posted on social media.

Cirulli later resigned, pleaded guilty to federal charges and was sentenced to probation.

Later that same year, a WKBW-TV news videographer recorded Officer Corey R. Krug slamming a man onto the hood of a car, pushing him to the pavement and beating him with a nightstick. That was broadcast on television and posted on the internet. The case against Krug, who has pleaded not guilty, is making its way through federal court.

Nonetheless, Hochul insists the videos of cellblock attendant Matthew J. Jaskula attacking a handcuffed Shaun Porter should not be released before his case comes to trial.

“Right now, what is public are our formal charges and a description of the facts that support the charges,” Hochul said. “I now have to ensure that the process proceeds according to the law, and the law says we do not discuss things outside of a court setting that could prejudice a defense. We also do not disclose evidence that might eventually be used in court until it is in fact presented in open court.”

But federal laws governing judicial proceedings ignore the public’s right to know, according to attorney Nan L. Haynes, a University at Buffalo Law School faculty member who has defended individuals in civil rights cases against police.

“The rules of evidence is like blowing smoke in my face,” Haynes said. “Let’s just discuss if it is subject to disclosure under FOIL, and it is. FOIL imposes a broad duty on government agencies to make their records available to the public. Whatever the rules of evidence are, Hochul can argue that in the criminal case. But we are talking here about Freedom of Information laws, which have a different purpose entirely.”

Robert J. Freeman, New York State’s expert on open government and freedom of information, has said the city’s decision to abide by Hochul’s request and deny a Buffalo News Freedom of Information request for the cellblock videos is wrong. The News has appealed the denial.

Much of what is on the videos already has been outlined in the FBI’s criminal complaint against Jaskula. Freeman said it would be difficult to come up with a scenario in which the government’s case against Jaskula would be harmed by release of the videos.

The federal criminal complaint is based largely on the May 19 cellblock videos, which show Jaskula, 26, slamming Porter, 37, into a steel door, dragging him down a hallway and strapping him into a restraint chair as he bled and in a semi-conscious or unconscious state. The complaint noted that at no time did Porter, who had been arrested on an assault charge, make threatening gestures. Jaskula allegedly began his attack after Porter, handcuffed from behind, asked him for a lawyer. Jaskula has been charged with felony deprivation of rights under the color of law.

Release of other videos

Defense attorney Rodney O. Personius, who represented Officer Cirulli, said there is a difference between videos from the cellblook and the videos of his client and Officer Krug.

“The Cirulli and Krug videos were released by the individuals who created them. Here, it is a different situation because that consent has not been given,” Personius said, referring to the city’s refsual to release the videos.

He also said that videos do not always present an accurate portrayal of what happened.

“To view any video without knowing the context can be very misleading. Two things you don’t have when you are looking at a video are sound, or it is incomplete audio, and what activity occurred before the start of what is disclosed in the video. In both cases you lose context, which can be very prejudicial,” Personius said.

Whether the cellphone video affected the case against Cirulli, the attorney said, is hard to determine.

“There is no way to measure what the effect was of the private video being released in the Cirulli case because the matter was resolved very quickly with him taking a plea,” Personius said.

Hochul said he had a right to use the videos of Cirulli and Krug because they had been released for public viewing. The cellblock videos of Jaskula came to him through another means. Within 24 hours of uncovering the attack on Porter, police officials notified Hochul’s office and the FBI. Because the cellblock videos had not been released, Hochul said he followed federal laws governing evidence and asked the city to withhold them.

Judge determines trial fairness

Hochul’s contention that he is required to make sure Jaskula receives a fair trial misses the mark, according to Lee Coppola, the retired dean of St. Bonaventure University’s Russell J. Jandoli School of Journalism and Mass Communication and a former federal prosecutor.

The responsibility of a fair trial for the defendant rests largely with the judge, Coppola said.

“In the end, the judge decides if a juror will be impartial. It’s not up to the prosecutor. Even if some jurors saw the video, the judge might determine that they could still be impartial and make a fair decision,” Coppola said.

But Coppola said he can see both sides of the argument, the public’s right to know vs. Hochul’s effort to avoid a trial tainted by partiality.

“As an investigative reporter, I would certainly want this video to be made public,” said Coppola, who was a reporter for The Buffalo News, WKBW and WIVB. “But as a former prosecutor, I’m not so sure that would be the way I would go.”

Late release diminishes impact

Police Commissioner Daniel Derenda and Mayor Byron W. Brown have said that the decision to honor Hochul’s request should not be construed as an attempt to block the public from seeing the videos. The videos will be released once the investigation and trial of Jaskula are completed, they said.

But the longer that the city and federal prosecutors hold onto the videos, the less impact they will have, according to Charles P. Ewing, a forensic psychologist and UB law professor.

“The outrage won’t be anywhere near as significant as it is today. I don’t see any benefit to the prosecution for wanting to hold this,” Ewing said. “Prosecutors generally do whatever they can to convict a defendant, and they are not generally worried about adverse publicity.”

But he, too, offered some support for Hochul’s position, saying that the cellblock videos may be so inflammatory that it would make it extremely difficult to select an unbiased jury.

Still, the surveillance cameras in the cellblock serve to protect those arrested from mistreatment and there is good reason to release the videos, Ewing said.

“Videotaping is to deter this kind of conduct, and what better way to discourage this kind conduct by law enforcement than to expose it to the public?” he said. “The deterrent is that people who would even think about doing it in the future would be deterred from doing so, not just because of the criminal penalties but the civic outrage.”

For his part, Hochul reiterated that he is not trying to suppress public information, saying:

“Things will be released in due course.”

email: lmichel@buffnews.com

Lou Michel– Lou Michel is the main crime reporter for The Buffalo News and co-author of the best-seller, "American Terrorist: Timothy McVeigh and the Oklahoma City Bombing." He has received numerous state and national journalism awards.